Irwin v. Gilson Realty Co., Inc.

• Citation: 117 Fla. 394,158 So. 77
• Parties: IRWIN et al. v. GILSON REALTY CO., Inc.
• Decision Date: 13 September 1934
• Court: United States State Supreme Court of Florida

158 So. 77

117 Fla. 394

IRWIN et al. v. GILSON REALTY CO., Inc.

Florida Supreme Court

September 13, 1934

Rehearing Denied Oct. 30, 1934.

Foreclosure suit by the Gilson Realty Company, Inc., a New York corporation, against Dorothy Irwin, sole and only heir of Marie C. Irwin, deceased, and another. From a decree in favor of the complainant, the defendants appeal.

Reversed.

WHITFIELD and BUFORD, JJ., dissenting.

On Petition for Rehearing. Appeal from Circuit Court, Dade County; H. F Atkinson, Judge.

COUNSEL

John C Gramling, of Miami, for appellants.

Stapp Gourley, Vining & Ward, of Miami, for appellee.

OPINION

BROWN, Justice.

Appellant contends that the complainant was estopped from bringing this foreclosure suit at the time it was brought on account of an agreement which was made between the complainant mortgagee and the defendant mortgagor for an extension of time provided the defendant mortgagor made certain improvements on the property, which improvements the defendant made, and on this appeal it is contended in her behalf that the lower court should be reversed upon the authority of the case of Moses v. Woodward, 109 Fla. 348, 140 So. 651, 141 So. 117, 147 So. 690. However, as there is some conflict in the testimony on this point, we might not be authorized to reverse the lower court on that account. But there is another error shown by the record in this case, which is duly assigned and insisted upon in argument, which in my opinion calls for a reversal. This bill for foreclosure was filed by a New York corporation on February 21, 1933. The defendant, on April 3, 1933, filed a motion to dismiss the cause on the ground that the complainant foreign corporation had not, on January 1, 1933, nor up to the time of the filing of said motion, complied with the provisions of chapter 14677, as amended by chapter 15725 of the Laws of 1931 (Ex. Sess.), by the payment to the state of the tax required by said statute in order to entitle said corporation to do business in this state and in order to permit it to maintain any action in any court of this state.

Section 5 of this act provides that 'any corporation failing to comply with the provisions of this Act for six months shall forfeit its corporate and charter privileges and shall not be permitted to maintain any action in any court in this State until such reports are filed and all fees due hereunder paid. On January first of each year the Secretary of State shall make up a list of the corporations of record in his office which have failed to comply with the provisions of this Act and shall mail a copy of such lists to the Clerks of the Circuit Courts, the Civil Courts of Record, the Circuit Judges and the Justices of the Peace of this State.'

The language of this section indicates that the courts of this state are given the power, of their own motion, to dismiss any suits filed by a corporation which has not complied with the provisions of this act, as soon as the suit is filed.

On April 26, 1933, the court made an order denying the above motion to dismiss and gave defendant twenty days in which to answer the bill of complaint. On May 3d the court extended the time for filing answer to twenty days from the date of that order, and on May 22d a further extension was made, on motion of defendant, to June 5, 1933, and on May 27, 1933, the defendants filed their answer. The corporation complainant had not complied with the statutes at the time the answer was filed.

The receipt of the secretary of state, for the payment of the tax required by the statute, appearing on page 79 of the record, is dated June 17, 1933, but the testimony by one of the attorneys for said complainant corporation, appearing on pages 47 and 48, was to the effect that the tax required by the statute had actually been paid on or about May 29, 1933.

Thus it appears that at the time the motion to dismiss for failure to comply with the statute was filed and denied, and at the time the defendants filed their answer, as required by the order of the court, the complainant corporation had not complied with the statute and therefore had no right to maintain the suit. Thus the court erroneously denied the motion to dismiss and erroneously required the defendant to file the answer to a suit which had been instituted by a corporation which had no right under our law to maintain a suit in any court in this state. Surely the subsequent payment of the tax did not cure this error. The motion to dismiss should have been granted and the complainant required to start its suit all over again after first having complied with the law of this state so as to authorize it to maintain the action in a court of this state. If this is not the correct interpretation of this statute, when, may it be asked, shall the tax be paid? May the complainant corporation wait until the day of the final decree, or the decree of confirmation, or until any day within the time within which the petition for rehearing might be filed? Or, is it not the duty of the court, when a bill is filed by a corporation which has not complied with the law and the defendant moves to dismiss the suit, to promptly grant the motion?

In this case the court not only denied the motion to dismiss, but made an order requiring the defendant to answer before the corporation had established its right to maintain the suit to begin with. It seems to me that, if this statute is to be given any force or effect, the courts should grant motion to dismiss upon noncompliance, and that a failure to do so should be held reversible error.

Section 4 of chapter 14677 provides that 'every corporation which shall fail to comply with the provisions of this Act within three months after July 1st of each year shall be deemed to be no longer exercising its charter or corporate privilege in this State.'

It would seem that the principles laid down in Diaz v. Parkland Estates (Fla.) 154 So. 199, would require a reversal of this case.

It would seem that the principles laid down

Reversed.

DAVIS, C.J., and ELLIS and TERRELL, JJ., concur.

DISSENTING

BUFORD, Justice (dissenting).

In this case the appeal is from decree in favor of the complainant in a suit to foreclose a mortgage.

The complainant in the suit below was a New York corporation. After the suit was filed, defendants moved to dismiss on the ground that the corporation had not paid its capital stock tax as required by chapter 14677, Acts of 1931.

It appears from the record that the motion was filed April 3, 1933, and was denied April 26, 1933. No further steps were taken by the complainant until after the tax was paid.

The court made orders extending the time in which defendants were required to file answer until after the tax was paid. Thereupon, answer was filed.

We think the action of the court in this matter conforms to the law as enunciated by us in the case of Jarvis v. Chapman Properties, Inc., filed May 1, 1933, reported 110 Fla. 17, 147 So. 860, and in Diaz v. Parkland Estates, filed March 14, 1934, reported 154 So. 199. Therefore, no reversible error was committed by denying the motion to dismiss.

The other questions presented are such as to be determined by a consideration of the testimony and they were determined adversely to the appellants on consideration of the testimony by the chancellor.

We find ample substantial evidence in the record to sustain the findings of the chancellor and the decree.

WHITFIELD, J., concurs.

On Petition for Rehearing.

BROWN Justice.

A petition for rehearing has been filed in this case in which it is contended that the failure of the corporation to comply with the provisions of chapter 14677 of the Acts of 1931, as amended by Acts 1931 (Ex. Sess.), c. 15726, was not properly presented to the court below; that it could only have been presented by answer and not by the method of motion to dismiss. Reference is made to the case of Jarvis v. Chapman Properties, Inc., 110 Fla. 17, 147 So. 860, 861. It is true that in that case the matter was brought to the attention of the court in the answer, and the corporation filed its report and paid its tax seven days later. No motion to dismiss the cause had been made by the defendant. It is said in the opinion in that case that:

'There is no law or rule of court which required the dismissal of the cause by the court of its own motion, and no motion was made to dismiss on this ground. In the absence of such a motion made during the pendency of the suspension of charter privileges, we are not here called upon to determine what the rights of the parties would be in a case where such a motion for such cause is so made.'

It is also contended that a motion to dismiss is the method provided by the Chancery Practice Act to raise a defense in point of law, not point of fact; that an answer is the proper method of asserting a defense in point of fact; and that a motion to dismiss, which under section 33 of the 1931 Chancery Act (Acts 1931, c. 14658) supplants a general demurrer, cannot be used to present a matter of fact. Reference to the cited section of the chancery act shows that it provides that every defense in point of law arising upon the face of the bill, which might heretofore have been made by demurrer, shall be made by motion to dismiss; but the context shows that this section refers to a motion to dismiss the bill by reason of insufficiency to constitute a valid cause of action in equity, whereas the motion involved in this case was not a motion to dismiss the bill, but, as stated in our original opinion, was a motion to dismiss the cause on the ground that the complainant was a foreign corporation and could not maintain the suit because it had not complied with the provision of chapter 14677 of the...